Permitting Protest/Silencing Dissent

by Don Mitchell

In advance of the massive global protests last February 15 against the Bush Administration’s plans for its illegal, “pre-emptive” war against Iraq, peace activists in New York applied for a permit to stage a march down 1st Avenue in front of the UN Building.

The permit was denied, on “security” grounds, even though in a hearing before a judge (who upheld the ban) the New York City Police admitted that it had no reason to expect violence and had no evidence suggesting there was a heightened risk of terrorism associated with the event.

Lauding the decision to ban the march (but to allow protesters to occupy “protest pens” in the middle of 1st several blocks north of the UN), the New York Times nonetheless opined that the City’s actions “should not become the standard for the future.” “It is crucial,” the Times continued, “that this not become the norm.”
But it already was the norm – in New York and around the country. The protest permit system has become a highly efficient means to minimize, and even silence, dissent – not just in New York. In New York City, the Bloomburg administration did not approve a single permit for a protest parade – for anything – prior to its denial of the February 15 permit. In Washington, the permit system is routinely used to route protests away from the World Bank and IMF buildings, from the offices of corporations like Coca-Cola and The Gap, and well away from the White House.

Most protest permits are granted on a first-come, first served basis. So in the summer of 2000, the City of Philadelphia granted the Republican National Committee (RNC) a blanket permit for the use of all public spaces (streets, sidewalks, parks, etc.) around the city’s convention center, near the hotels that Republican Convention delegates were staying at, and all along the route between the hotels and the convention site. Protest groups were allowed to apply to hold a protest in a particular place. The application was then passed on to the RNC, which then had to decide if it was “really” using the protest site or not. If it was, then the protesters were out of luck. In essence the RNC was given the right to silence any group it did not like – or if not to silence it, at least to push it so far from the convention that it would not be heard.

Of course, our right to use of public space for protest has always been tenuous – despite what we might think the First Amendment guarantees. It was not until 1939 that the Supreme Court finally declared that the use of streets and sidewalks for political assembly and speech was constitutionally protected. And when it made this declaration it immediately qualified it. Public speech and assembly, the Court declared, has always to be “exercised in subordination to the general comfort and convenience, and in consonance with peace and good order….”

In the years since, the Supreme and lower courts have found “general comfort and convenience … peace and good order” to encompass everything from minimizing the opportunity for violence to not unduly delaying shoppers doing their Saturday rounds; from keeping contentious groups apart to keeping the traffic moving; and from keeping antiabortion activists away from clinic entrances to assuring the grass in a park is not trampled. As long as rules and regulations are “content neutral” (they don’t, apparently, punish viewpoint) and as long as they do not “burden more speech than is necessary to achieve a narrowly tailored end” (they don’t accomplish a goal that could be more easily accomplished through some other means), courts will sanction them. The protest permit system is now the primary means of assuring order by regulating free speech.

Indeed, courts have strongly encouraged the development of permit processes, even though back in that 1939 decision the Supreme Court found that just such a permit system was a form of “prior restrain” on political speech. Prior restrain – government censorship – was anathema to the designers of the Bill of Rights and in 1931 the Supreme Court developed a doctrine that says that “there is a heavy presumption against” the Constitutional validity of prior restraint. This means that governments have to prove the validity of prior restraint in each instance; its validity can never be assumed. Constitutional scholars agree that requiring a permit, or license to engage in protest is (in the words of one scholar) a “classic type of prior restraint.” And permit systems, by definition, assume the validity of prior restraint: instead of governments always having to prove prior restraint is essential (as prior restraint doctrine requires), protesters are burdened with proving unconstitutionality. This is not cheap; and it is not easy (the judge in New York said she did not want to “second guess” the city’s police officers when they claimed security was at stake).

The Court’s negotiation of this contradiction between its promotion of permit systems and its prior restraint doctrine is torturous. In 1941 it ruled that while public political speech could not be licensed, parades could. That is, the content of speech could not be regulated, but the form of expression could. And twelve years after that, it ruled that stationary protests could also be regulated, since unlike parades, they tended to “monopolize” space making it unavailable for other viewpoints!
If the right to public, free speech was finally declared in 1939, then by 1953, the Court had backtracked so far that what had once (briefly) been a right of the people to political protest became the right of the state to permit speech (or not). This is the world we have lived in ever since: the norm the New York Times thought might be being born in the City’s decision to block the antiwar march, was already 50 years old.

This made the nation-wide protests on the night the war began all the more important. For in city after city, including in Syracuse, protesters made conscious decisions not to abide by permit rules and regulations. They knew that to be heard, the law – and more than a half century of Court decisions – would have to be broken, for it is not just the corporate media, not just the condescending pronouncements of the current White House, and not just local, sometimes brutish police forces or vigilante groups that seek to silence dissent in America, but the very structure of the law that has grown up around the exercise of First Amendment rights. Reasonable as it sometimes seems, that law is stacked against dissent. True power, the writers of First Amendment regulations know, includes the power to control where and when and how dissent takes place. But the protests that accompanied the start of the current invasion and occupation of Iraq showed that this power is never absolute.

This suggests a few lessons for the antiwar movement. First, among all the other things protesters need to be savvy about, one is continuing to use the permit system strategically, obeying it when that is best for getting the message across, defying it when necessary. Protesters need to be aware that the police use the permit system as a pretext to make arrests. Common charges against protesters these days include parading without a permit. Equally, police often seek to prevent or break-up protests if they think they are somehow violating the specific terms of a protest. The possibility for such pretextual policing must be understood, and strategies developed in light of it. Second, ploys like the Philadelphia/RNC blanket permit (which, evidence suggests, is being copied across the country) need to be exposed, publicized, and resisted, in courts and on the streets (as the Kensington Welfare Rights Union successfully did when it staged a mass march to the convention center anyway). Third, pressure needs to be applied to lawmakers and the judiciary to begin undoing a system that – whatever its values in preserving “order” and promoting “convenience” – in fact undermines critical means for dissent in America and thus undermines democracy.

The fight for free speech is a fight always worth engaging.

This article is based on research conducted with Dr. Lynn Staeheli of the University of Colorado.

Don, the founder and director of the People’s Geography Project, is a professor and the Chair of the Geography Department at Syracuse University. He is the author, most recently, of The Right to the City: Social Justice and the Fight for Public Space (Guilford 2003) and is at work on a book called The Bill of Rights: A Radical Geography. Don will be speaking about issues related to this in the Westcott Neighbors Lecture Series at the Westcott Community Center at 7:30 pm on Thursday September 18.